Citation Nr: 0624467
Decision Date: 08/11/06 Archive Date: 08/18/06
DOCKET NO. 04-15 490 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUE
Whether there was clear and unmistakable error in a rating
decision of January 14, 1994, which awarded service
connection for tinnitus and assigned a 10 percent disability
evaluation.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J.G. Reinhart, Associate Counsel
INTRODUCTION
The veteran had active service from September 1972 to
December 1992.
This matter comes before the Board of Veterans' Appeals
(Board) from an April 2003 rating decision of the above
Department of Veterans Affairs (VA) Regional Office (RO), in
which clear and unmistakable error (CUE) was not found in the
January 1994 rating decision.
FINDINGS OF FACT
1. In a January 1994 rating decision, the RO granted service
connection for tinnitus and assigned a 10 percent disability
rating, effective January 1993. The veteran did not appeal
that decision, and it became final.
2. The veteran's service-connected tinnitus is assigned a 10
percent rating, the maximum rating authorized under
Diagnostic Code 6260.
3. The veteran has failed to establish any kind of error of
fact or law in the January 1994 rating decision which, when
called to the attention of later reviewers, compels the
conclusion, to which reasonable mind could not differ, that
the result would have been manifestly different but for the
error.
CONCLUSIONS OF LAW
1. There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for tinnitus. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260
(1993, 2005); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir.
2006).
2. Clear and unmistakable error in the January 1994 rating
decision has not been established. 38 U.S.C.A. §§ 5109A,
7105 (West 2002); 38 C.F.R. § 3.105(a) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
Initially, the Board notes that the VCAA is not applicable
claims alleging CUE. The U.S. Court of Appeals for Veterans
Claims has determined that an assertion of CUE is not a
conventional claim. Instead, a CUE claimant is collaterally
attacking a previous, final decision. Given the nature of a
claim to revise an earlier, final RO decision based upon CUE,
no notification as to additional evidentiary development of
the record is at issue, since, as discussed below, the
evaluation of such a claim is based upon the record as it was
constituted at the time of the decision as to which revision
is sought. Moreover, the Court has held that "as a matter
of law, the VCAA is inapplicable to CUE claims." Sorakubo
v. Principi, 16 Vet. App. 120, 122 (2002), citing Livesay v.
Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); see also
Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that
the VCAA does not affect matters on appeal when the issue is
limited to interpretation of law).
An individual whose VA claim is denied by an RO has one year
in which to initiate an appeal to the Board by filing a
notice of disagreement. If no appeal is filed, the decision
is final, and is not subject to revision on the same factual
basis. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2005). A final
decision may, however, be reversed or amended where evidence
establishes that it was the product of clear and unmistakable
error. 38 U.S.C.A. § 5109A (West 2002 & Supp. 2005);
38 C.F.R. § 3.105(a). For the purposes of authorizing
benefits, reversal or revision of the prior decision on the
grounds of CUE has the same effect as if the correct decision
had been made on the date of the prior decision. Id.
CUE is the kind of error, of fact or law, that when called to
the attention of later reviewers compels the conclusion, as
to which reasonable mind could not differ, that the result
would have been manifestly different but for the error. To
find CUE, the following three-prong test is used: (1) either
the correct facts, as they were known at the time, were not
before the adjudicator (a simple disagreement as to how the
facts were weighed or evaluated will not suffice) or the law
in effect at that time was incorrectly applied; (2) the error
must be undebatable and of a sort which, had it not been
made, would have manifestly changed the outcome at the time
it was made; and (3) the determination of CUE must be based
on the record and law that existed at the time of the prior
adjudication. See Russell v. Principi, 3 Vet. App. 310, 313-
4 (1992).
Service connection for tinnitus was established in January
1994, and the RO assigned a 10 percent disability evaluation
under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 (1993).
The record reflects the veteran was notified of that decision
the same month and did not submit a notice of disagreement as
to the prior determination. Therefore, the January 1994
decision is final. See 38 U.S.C.A. § 7105(c) (West 2002);
38 C.F.R. § 20.1103 (2005).
In February 2003, the veteran's representative raised a claim
for separate ratings for tinnitus of each ear, stating that
it was their interpretation that Diagnostic Code 6260
required separate 10 percent ratings for each ear. The
representative then stated, "Please institute a corrected
rating decision with effective date as the same original
one."
The veteran maintains that the Rating Schedule in effect at
the time of the January 1994 rating decision did not mandate
a combined evaluation for tinnitus affecting both ears, and
that Diagnostic Code (DC) 6260 allows for a 10 percent
evaluation for each ear. In a rating action dated in April
2003, the RO denied the veteran's claim, noting that, under
DC 6260, there is no provision for assignment of a separate
10 percent evaluation for tinnitus of each ear. The veteran
appealed that decision to the Board.
Under DC 6260, in effect prior to June 10, 1999, a maximum 10
percent rating was assigned for tinnitus that was persistent
as a symptom of head injury, concussion, or acoustic trauma.
38 C.F.R. § 4.87a, DC 6260 (1993). Although the law is clear
that a determination that there was CUE in a previous
decision must be made based upon the record and law that
existed at the time of the prior adjudication, the Board
notes that the rating criteria for tinnitus have been amended
twice. From June 10, 1999 to June 12, 2003, DC 6260 provided
that, if tinnitus is shown to be recurrent, a maximum 10
percent evaluation is warranted. As of June 13, 2003, DC
6260 provides that a 10 percent evaluation is warranted for
tinnitus which is recurrent. Note 2 states that a single
evaluation is to be assigned for recurrent tinnitus, whether
the sound is perceived in one ear or both ears, or in the
head. See also VAOPGCPREC 2-2003 (May 22, 2003).
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S.
Court of Appeals for Veterans Claims (CAVC) held that the
pre-1999 and pre-June 13, 2003 versions of DC 6260 required
the assignment of dual ratings for bilateral tinnitus. VA
appealed this decision to the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) and stayed the adjudication
of tinnitus rating cases affected by the Smith decision. In
Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the
Federal Circuit concluded that the CAVC had erred in not
deferring to the VA's interpretation of its own regulations,
38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a
veteran to a single disability rating for tinnitus,
regardless whether the tinnitus is unilateral or bilateral.
Citing U.S. Supreme Court precedent, the Federal Circuit
explained that an agency's interpretation of its own
regulations is entitled to substantial deference by the
courts as long as that interpretation is not plainly
erroneous or inconsistent with the regulations. Id. at 1349-
50. The Federal Circuit found that there was a lack of
evidence in the record suggesting that VA's interpretation of
DC 6260 was plainly erroneous or inconsistent with the
regulations and concluded that the Veterans Court had erred
in not deferring to VA's interpretation. Subsequently, the
stay of adjudication of tinnitus rating cases was lifted.
Based upon the foregoing, the veteran's service-connected
tinnitus has been assigned the maximum schedular rating
available for tinnitus. See 38 C.F.R. §4.87, DC 6260. As
such, the Board finds that clear and unmistakable error in
the RO's January 1994 rating decision has not been
established. Essentially, the veteran has failed to
establish any kind of error of fact or law in the January
1994 rating decision, that when called to the attention of
later reviewers, compels the conclusion, to which reasonable
minds could not differ, that the result would have been
manifestly different but for the error. Therefore, the
veteran's claim must be denied.
ORDER
The January 1994 rating decision which granted service
connection for tinnitus and assigned a 10 percent evaluation,
was not based upon clear and unmistakable error in failing to
assign a separate 10 percent rating for tinnitus claimed as
present in each ear; thus, the claim for that benefit is
denied.
____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs